Hearing delayed in attorney general’s death penalty lawsuit against the Nebraska Legislature

LINCOLN — A judge postponed Friday’s hearing on a lawsuit seeking to block a legislative inquiry into Nebraska’s new death penalty procedure.

The first hearing in what could become a constitutional battle between two branches of state government is now scheduled for June 18 in Lancaster County District Court.

The delay also means the Legislature’s Judiciary Committee won’t hold Tuesday’s public hearing, in which it had ordered the state prisons director to answer questions about the lethal injection protocol. A new date for the public hearing has not been determined, said State Sen. Laura Ebke of Crete, chairwoman of the committee.

William Connolly, the lawyer representing the 16 senators named in the lawsuit, said Friday that he needed more time to prepare to argue against a motion by the state to quash the Legislature’s subpoena of Scott Frakes, director of the Department of Correctional Services. The Attorney General’s Office, which filed the lawsuit Tuesday, agreed to the continuance.

Connolly, a former Supreme Court judge, said the legal dispute raises significant constitutional issues, including the separation of powers between the legislative and executive branches. The Omaha attorney was retained by the senators Wednesday.

The office of Attorney General Doug Peterson sued the senators to prevent them from questioning Frakes about the lethal injection procedure. The lawsuit contends that members of the Legislature’s Judiciary Committee and Executive Board made several legal errors in voting to approve the subpoena.

The senators planned to question the head of the Corrections Department next week about how his staff devised the untried four-drug combination it intends to use to carry out the state’s first execution in 21 years. Ebke said the public hearing was set as a part of the Legislature’s oversight function.

The attorney general has notified two of the 11 inmates on Nebraska’s death row that it has the drugs necessary to carry out their executions. A decision by the Supreme Court is pending on the attorney general’s request for a death warrant for Carey Dean Moore, convicted of the 1979 killings of Omaha cabdrivers Reuel Van Ness and Maynard Helgeland.